Getting Wasted

Attorney Cynthia Henley challenged the charge before the First Court of Appeals. At stake was the prosecutors' presumption that the case was one of so-called strict liability -- that they didn't have to prove that a defendant meant or intended for his garbage to become litter, only that it had indeed ended up as litter.

In April 2000, the justices ruled in favor of Weise and Henley, setting off alarms within the district attorney's environmental unit. According to Haseman, to remove prosecutorial discretion would cripple the enforcement effort. "Obviously, our intent is to prosecute the most culpable person we can find," he says. "We don't have any interest in prosecuting residents just because we find their trash somewhere."

Deron Neblett

Henley believes prosecutors targeted her client simply because he stood up to them.

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More About

• Tom Hagemann
• Mike Walsh
• Cynthia Henley
• Law
• Criminal Law

But doesn't that description fit Weise?

"If I remember correctly, he refused to cooperate or give officers any information…he really didn't have any explanation for why his trash got from point A to point B."

"Uncooperative?" Henley says in amazement. "In the sense that he couldn't provide the name and phone number of the trash guy? That is absolutely ridiculous."

Henley shudders at the explanations about prosecutorial discretion. She believes they went after Weise simply because he stood up to them. "They are out of control in that they are holding grudges," she says.

As for the strict liability interpretation, the ultraconservative Court of Criminal Appeals eventually upheld such prosecutions in pollution cases. By then, the district attorney's office already had mounted a lobbying campaign that resulted in new state legislation formally adding the language to the law.

Henley wryly notes that the strict liability law ought to spell open season for the D.A.'s office to charge sitting judges for all those campaign signs that are still littering public rights-of-way, long after the last election. "Like my client, those people have the money to pay fines," she says.

• Those who don't enter a plea can be threatened with other investigations.

The Glen Cairne Community Association in northwest Houston hired two men to sweep its streets in January 2000. The association managers, brothers Ransom and Larry Daly, mistakenly told the sweeping firm to dump what they had collected in a vacant lot.

The lot was next to a church, however, and the preacher complained about the high mound of debris. Police cited the sweepers, and the debris was moved to another lot owned by the association. However, that did not satisfy the enforcement team, and soon the Dalys and their management firm were charged.

Fred Johnson, attorney for the Dalys and the association's insurer, Chubb Insurance, says it was obvious that prosecutors merely homed in on the deep pockets of the carrier. They wanted almost $10,000 -- fines, a contribution toward a city fund to clean up a tire dump, $3,000 more to another city fund and the maximum $1,000 each from the Dalys and the firm.

Johnson protested that the sweepers got only a $100 fine each. He says the D.A.'s office next threatened a grand jury investigation into insurance fraud, ostensibly because the management firm had slightly changed its name since it had been insured.

"There was just something about that case that never seemed right from the insurance standpoint," Haseman says. The hefty fines were sought at least in part because the Dalys had been uncooperative and had thought they could merely spread the debris, which included toxic materials, over a vacant lot near a children's area, he says.

"They did enter pleas on all those cases, and they were resolved without trial," Haseman proclaims with satisfaction.

"Yes," Johnson says. "It took essentially telling them, 'We will go to trial, and we will not back down,' before we could get a reasonable resolution." The result, he says, were fines of $100 each -- just what the defense initially proposed.

"It would be great if the Ship Channel and all the other really polluting areas had been cleaned up and they were just down to litterers or guys who dump weeds," Johnson says of the prosecutorial priorities. "But I really don't believe that's the case."

• Laws allow penalties that far exceed the crime.

Attorney Deborah Keyser became the court-appointed lawyer for a man named David who had just worked his way up from being homeless. He volunteered to help a friend restore his car after it was flooded in Tropical Storm Allison. They'd gone to a Montrose auto supply store and bought transmission fluid and a plastic drain pan. He drained the auto's fluid in the parking lot using the pan, although he spilled some of it, less than a quart. While he was trying to hose it down, police appeared out of nowhere and arrested him for violation of the used oil act. A prior felony assault conviction in California upped the maximum penalty to two to 20 years in prison and a $100,000 fine.

"What?" Keyser says she replied when told of the punishment range. "We're talking prison time for a quart of transmission fluid? I pulled the law, and my jaw just dropped." Keyser managed to get it reduced to $1,000, with state District Judge Carol Davies giving David $50 credit for each of the 11 days he spent in jail after the arrest.